Date: 20231201

Dockets: T-2183-22

T-2188-22

Citation: 2023 FC 1620

[ENGLISH TRANSLATION]

Ottawa, Ontario, December 1, 2023

PRESENT: The Honourable Mr. Justice Roy

BETWEEN:

GINETTE TROTTIER

Applicant

and

THE ATTORNEY GENERAL OF CANADA

Respondent

JUDGMENT AND REASONS

[1] The applicant, Ginette Trottier, sought judicial review of three decisions made by authorized officials of the Canada Revenue Agency, pursuant to section 18.1 of the Federal Courts Act, RSC 1985, c F‑7.

[2] All three decisions were based on negative decisions regarding Ms. Trottier’s eligibility for three federal programs implemented during the COVID-19 pandemic. While the programs are distinct, they follow the same logic, and the eligibility criteria are closely related.

[3] However, Ms. Trottier withdrew from her judicial review bearing file number T‑2187-22 on the eve of the hearing of the judicial reviews. As a result, there are now only two judicial reviews before the Court.

[4] The applicant was therefore correct in undertaking two different judicial reviews given rule 302 of the Federal Courts Rules, SOR/98-106, which specifically requires that an application for judicial review be limited to a single order in respect of which relief is sought.

[5] Furthermore, Associate Justice Tabib ordered that the three original applications for judicial review be heard together (Order dated December 9, 2022); likewise, the parties filed only one memorandum of fact and law each for the three applications. In fact, the three judicial review applications were very similar. Now only two remain.

[6] In these circumstances, a decision will be made by the Court in the remaining two cases, as a copy of the decision is required to be filed in each case.

I. Facts

[7] To help address the impact of the 2019 coronavirus disease [COVID-19] pandemic, Parliament passed legislation to establish programs to pay taxable benefits that provide financial support to employees and self-employed workers directly affected by COVID-19. The legislation establishes eligibility requirements, and the programs are administered by the Canada Revenue Agency.

[8] In administering these programs, the Canada Revenue Agency reviews payments to verify the eligibility of individuals who claimed benefits. This applies to Ms. Trottier, who has claimed and received payments for different programs, two of which are the subject of an application for judicial review in the case at hand:

• Canada Recovery Sickness Benefit [CRSB] [T‑2183‑22]; and

• Canada Recovery Benefit [CRB] [T‑2188‑22].

[9] These programs covered periods that overlapped each other to some extent. An emergency program, which is not part of this litigation, ran from March 15, 2020, to September 26, 2020. The programs of particular interest to us took place during the following periods:

• Recovery (CRB): September 27, 2020, to October 23, 2021; and

• Sickness (CRSB): September 7, 2020, to May 7, 2022.

The program that led to the third judicial review (which was withdrawn) covered the period from October 24, 2021, to May 7, 2022. It consisted of the Canada Worker Lockdown Benefit (CWLB).

[10] In the cases that matter to us, Ms. Trottier received benefits under the CRSB for a single period, from May 31, 2021, to June 5, 2021 ($500). She now states that it was a mistake, as she was instead seeking recovery benefits during this period. Ms. Trottier received benefits in the amount of $24,600 for the periods of September 27, 2020, to May 22, 2021, and June 6, 2021 to October 23, 2021.

II. Decisions

[11] In the end, all the benefits paid to Ms. Trottier were disallowed once the Canada Revenue Agency had more closely reviewed whether the applicant met the eligibility requirements. Therefore, I will start by presenting the conditions for each of the two programs. We will then look at the reasons given for concluding that one condition for receiving the benefits or the other was not met.

[12] The program creating the Canadian Recovery Sickness Benefit stems from the Canada Recovery Benefits Act, SC 2020, c 12, s 2 [Act]. It sets out the eligibility requirements for the Canada Recovery Benefit in Part 1, which we will return to, and the conditions relating to cases of sickness in Part 2.

[13] The common conditions for both programs are to have a valid Social Insurance Number, be at least 15 years old, and reside and be present in Canada during the relevant period. For sickness, the relevant eligibility condition is set out in paragraph 10(1)(f) of the Act:

In a nutshell, the applicant had neither contracted COVID-19 nor had a certificate that could qualify her under paragraphs (ii) or (iii). Thus, she fairly concedes that receiving a sickness benefit does not meet the conditions of the Act.

[14] The recovery benefits constitute the vast majority of the amounts claimed from the applicant. The Act requires a minimum threshold of income from employment, self-employment, benefits under the Employment Insurance Act, SC 1996, c 23, or certain provincial allowances. The threshold is $5,000 during the periods specified in the Act. Thus, for the two-week periods beginning in 2020, the Act requires that $5,000 in income was earned in 2019 or in the 12 months preceding the application for a benefit (paragraph 3(1)(d) of the Act). For periods beginning in 2021, the income earned in 2019 or 2020, or in the 12 months preceding the date on which the application is made, is at least $5,000 (paragraph 3(1)(d) of the Act).

[15] Other conditions must be met. For our purposes, I note the following conditions:

[16] These conditions, which are certainly not easy to read, demonstrate that Parliament intended not only that a person earn a minimum income before being able to access recovery benefits, but also that the person’s income be substantially reduced for reasons related to COVID-19 (paragraph 3(1)(f) of the Act). These conditions also require that a person seek self-employment (paragraph 3(1)(i) of the Act) without unduly restricting availability for employment or self-employment (paragraph 3(1)(j) of the Act). It is also provided that the person must not cease, or refuse, to work voluntarily unless it is reasonable to do so, in accordance with the terms and conditions set out in paragraphs 3(1)(k) and (l) of the Act. I have outlined in the cited provisions the passages relevant to the case of Ms. Trottier, who was self-employed.

[17] In both cases, the administrative decision maker refused to recognize the applicant’s eligibility for benefits (Decision dated September 22, 2022). With respect to the CRSB (sickness), the decision simply notes that the applicant is ineligible for this benefit because [translation] “your weekly work schedule has not been reduced by at least 50% because you had to self-isolate for reasons related to COVID-19”. As seen earlier, this benefit was for those unable to work because they were sick with COVID-19 and had to self-isolate or suffered from an underlying health problem making them more vulnerable to COVID-19, with supporting evidence. This was not the case for Ms. Trottier, and she admits that she therefore did not have her income reduced because of sickness.

[18] With respect to the CRB (recovery), the Decision dated September 22, 2022 states that (1) Ms. Trottier did not work “for reasons other than COVID-19”, and (2) although she could work, the applicant did not seek employment. The explanation for the reasons for refusal is set out in the second review report. This Court has long established that this report is an integral part of the decision (Aryan v Canada (Attorney General), 2022 FC 139), relying on Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para 44). It is therefore necessary to refer to it to understand the explanation for the reasons for the refusal.

[19] With respect to the CRSB (sickness), no notes were provided, but this is irrelevant because the applicant confirmed, even at the judicial review application hearing, that she was not eligible for it. With respect to the CRB (recovery), the notes explain why the applicant was ineligible and provide the following factors as justification for refusing to recognize eligibility:

• The applicant, as an explanation, states that she did not voluntarily leave her employment. She was a self-employed worker who taught English at home, at clients’ premises or at public libraries that were closed on March 20, 2020.

• The notes state that this explanation could justify emergency benefits, but not those that only become available on September 27, 2020. Instead, the taxpayer confirmed in September 2022 that she did not resume her activities: [translation] “nor did she try to find other employment because of fear of the virus”. According to the report, Ms. Trottier told a public servant on September 20, 2022 [TRANSLATION] “that it was out of the question that she work, [and] she refused any contact with people for fear of catching COVID-19”.

• Ms. Trottier did not intend to start working again until the mask mandate was lifted. Since she was over 65 years old, she stated that she was following the government’s instructions to stay home.

• Furthermore, Ms. Trottier stated that she was immunocompromised, but she apparently also stated that she was fit to work; she had not received any medical recommendations regarding COVID-19.

• The applicant did not attempt to resume her activities during reopening periods. In fact, she [translation] “shut down her website in 2020, shortly after the initial lockdown, as she did not plan to return to work”.

[20] The investigation report then made its findings on the basis of the facts established as to the refusal to work for reasons other than COVID-19:

• The applicant did not want to have contact with people.

• She voluntarily decided to shut down her website.

• She did not intend to start working again until the mask mandate was lifted.

• Since she is over 65 years old, she did not attempt to resume her teaching activities.

According to the report, this justifies the conclusion that the applicant had stopped working for reasons other than COVID-19.

[21] As for the second reason the applicant was denied benefits, it relies on the fact that the applicant, although able to work, did not seek employment or take steps to resume teaching activities. She was explicit in that regard. The applicant stated on September 20, 2022, that [translation] “it was out of the question that she start back before the mask mandate was lifted”. Not only is it specifically noted in the report that the applicant claimed not to have [translation] “tried to find other employment because of fear of the virus” but also, in the same breath, the report adds that [translation] “in her letter submitted on 2022-06-06, she states that she has not received any calls. Waiting for calls is not considered seeking employment”.

III. Applications for judicial review

[22] While three notices of application for judicial review were filed (there are only two remaining), as was required, the applicant filed only one memorandum of fact and law.

[23] With respect to the CRSB (sickness), in T-2183-22, the notice of application acknowledges that the applicant was not suffering from COVID-19. She apparently applied for this benefit by mistake when she should have applied for and received the Canada Recovery Benefit (CRB). For an unexplained reason, the applicant still alleges that the decision is [translation] “patently unreasonable”, which should lead to the matter being referred back to a different administrative decision maker for redetermination. It is understood from the written submissions that the Court is being asked to transform the application for the CRSB into an application for the CRB. It is not stated how such a transformation could be made, especially since subsection 11(2) of the Act specifies that “[n]o application is permitted to be made on any day that is more than 60 days after the end of the week to which the benefit relates”. Unless it is possible to create a valid application for a recovery benefit with retroactive effect, this application is simply out of time, after the only application made for the claimed period had to be declared invalid because the essential condition, sickness, did not exist. Since the judicial review must be dismissed, the applicant had to demonstrate that a remedy exists, even though the judicial review application can only be dismissed.

[24] The application for the recovery benefit (CRB) [T-2188-22] alleges that Ms. Trottier has been an honest self-employed English teacher for 15 years. The pandemic significantly affected her business model, particularly as a result of the closure of public spaces where she taught. The notice of application merely states that the applicant met the requirements and that the decision is therefore “patently unreasonable”.

[25] The memorandum of fact and law also lacks explanation. It submits, without supporting evidence, that the reason the applicant did not seek employment was her health. She claims she suffers from rheumatoid arthritis, which makes her vulnerable to COVID-19 (because she is immunocompromised) and could result in severe complications if she contracted the disease. There is no evidence on the record in this regard. A medical assessment was not provided to the administrative decision maker, the person to whom the evidence was to be provided. The memorandum also states that since she has reached retirement age, [translation] “it is normal that she is no longer looking for work now”. Finally, it states that the applicant abandoned her business because of the closure of the public spaces she used to deliver classes and the ban on indoor gatherings. Thus, the applicant limited the possibility of working to operating her only business in a public place or at home.

IV. Analysis

[26] The respondent is correct that the evidence submitted by the applicant in her February 23 affidavit is inadmissible. An application for judicial review is heard on the basis of the case before the administrative decision maker (Bernard v Canada (Revenue Agency), 2015 FCA 263 at paras 13 et seq.; in a context similar to that of the case at hand, see among others Sid Seghir v Canada (Attorney General), 2022 FC 466 [Sid Seghir] at paras 9–14). It must therefore be rejected.

[27] In additional notes that were allowed to the parties when the applicant expressed surprise at the filing of a decision of this Court that dealt with, among other things, the requirement of seeking employment (Lalonde v Canada (Revenue Agency), 2023 FC 41 [Lalonde]), she sought to make an argument about seeking employment on the basis of new evidence submitted with the applicant’s affidavit after the decision. This evidence is inadmissible on judicial review; therefore, the argument cannot be considered on judicial review. In any event, this evidence would have had no impact on the decisions that the Court was called upon to make in the case at hand.

[28] With respect to the CRSB (sickness), as noted above, there is no doubt that the applicant was not entitled to it. She admits it. It obviously follows that her application for judicial review can only be dismissed. Since the administrative decision maker clearly found that the applicant was ineligible, no reviewable error can give rise to a remedy. The decision under review is the only reasonable one, and a remedy is due only if a decision is favourable to the applicant. I would add that the applicant has not offered any authority for her creative proposal that the Court could, on judicial review, order payment of a benefit without the express conditions of the law being complied with, thereby forcing the government to make payments to an entity out of the Consolidated Revenue Fund even though the law has not been complied with. In my view, the rule of law requires that such a suggestion be resisted given the very nature of judicial review: the reviewing court reviews the legality of the decision made by the administration. To the extent that this decision is legal because it is reasonable, the reviewing court accounts for it by dismissing the application for judicial review. This puts an end to the role to by played on judicial review.

[29] The CRB (recovery) was not subject to the same concession as in the case of the CRSB. On the contrary. The administrative decision maker therefore reviewed the file to draw two conclusions as to the applicant’s eligibility. She stopped working for reasons other than COVID-19 and, while capable of working, did not seek employment or self-employment as required by the Act.

[30] The burden is on the applicant to establish that the decision made is unreasonable within the meaning of administrative law. This means that the reviewing court must accept the principle of judicial restraint and accord deference to the administrative decision maker. Nevertheless, the decision must be based on an internally coherent and rational chain of analysis (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 [Vavilov] at paras 13, 14, and 85). It is said that the hallmark of reasonableness is justification in relation to the relevant factual and legal constraints (Vavilov at para 99). It will be up to an applicant to satisfy the reviewing court of serious shortcomings to conclude that the requirements of justification, transparency and intelligibility are not met.

[31] This demonstration by the applicant was lacking in the case at hand. A decision may be flawed because of its outcome, which would not bear the hallmarks of reasonableness, or because of the reasoning process that led to a given outcome (Vavilov at para 87). It is not enough for the decision to be justiciable; it must be justified. However, it is up to the applicant to demonstrate that it is unreasonable.

[32] As noted above, the applicant’s notice of application for judicial review relies exclusively on the claim that her business model was [translation] “completely disrupted” in March 2020. Very well. However, the CRB program was implemented seven months later and requires, among other things, that the individual was not self-employed for reasons related to COVID-19 (paragraph 3(1)(f) of the Act) and that he or she sought work in self-employment (paragraph 3(1)(i) of the Act).

[33] The evidence before the administrative decision maker, which is not in any respect contradicted, is rather that the applicant, as of September/October 2020, was not seeking employment or self-employment opportunities. In fact, the applicant’s memorandum simply confirms this. Essentially, it explains that when she stopped working in March 2020, she had reached retirement age and did not actively seek new employment. As the memorandum states, [translation] “[i]t was unwise for her to look for a new field at that age and take the risk of contracting COVID-19 by coming into contact with strangers. In short, it is normal that she no longer seeks employment because she is of retirement age” (Memorandum of Fact and Law, at para 3). This seems to me to confirm the notes taken and that are part of the file: the applicant had chosen not to seek employment.

[34] As a result, it is unclear how the decision to reject Ms. Trottier’s eligibility because she was not looking for work could be said to be unreasonable. The burden on the applicant has not been discharged.

[35] Lalonde (above) is essentially to the same effect. As in the case at hand, Ms. Lalonde confirmed to the second officer that she was not looking for employment to cover her loss of income. As stated by this Court, “[s]he had to actively look for employment opportunities and offer her services to other potential clients, including through advertising, as described in the CRB guidelines” (at para 92). The evidence before the administrative decision maker was to the same effect. It has not been established that the decision does not bear the hallmarks of reasonableness.

[36] I would have been inclined to question the decision maker’s conclusion that the applicant was not working for reasons other than COVID-19. As noted in Sid Seghir (above), the Act refers to reasons related to COVID-19. It would have been appropriate for the decision maker to further explain how the March 2020 stoppage, which continued in the fall of 2020, was unrelated to COVID-19 rather than simply refer to reasons other than COVID-19, which may be different from COVID-19-related reasons. If that were the case, it could have been argued that it is the reasons for the decision that are flawed. However, the applicant did not allege a flaw in the reasoning and reasons that led to the outcome, which would have enabled the respondent to argue the contrary in turn had the argument been made. In other words, there could not be any participation on an issue that was not raised. Therefore, it is preferable to avoid commenting on this issue as the criteria of seeking employment is an essential condition for eligibility for the CRB program. That is sufficient to dismiss this application for judicial review.

V. Conclusion

[37] Therefore, the two remaining applications for judicial review before the Court must be dismissed. The respondent, who had originally claimed costs, waived them at the hearing. Therefore, no costs will be awarded.

JUDGMENT in T-2183-22 and T-2188-22

THIS COURT’S ORDER is as follows:

1. The application for judicial review in T-2183-22 in respect of a benefit received under the Canada Recovery Sickness Benefit is dismissed.

2. The application for judicial review in T-2188-22 in respect of benefits received under the Canada Recovery Benefit is dismissed.

3. A copy of this judgment and its reasons will be placed in dockets T-2183-22 and T-2188‑22.

4. No costs are awarded.

“Yvan Roy”

Certified true translation

Michael Palles

FEDERAL COURT

SOLICITORS OF RECORD

DOCKETS:		T-2183-22 and T-2188-22
STYLE OF CAUSE:		GINETTE TROTTIER v ATTORNEY GENERAL OF CANADA
PLACE OF HEARING:	MONTRÉAL, QUEBEC
DATE OF HEARING:	November 16, 2023
JUDGMENT AND REASONS:	ROY J.
DATED:	DECEMBER 1, 2023

APPEARANCES:

Sophie Mongeon	FOR THE APPLICANT
Samantha Jackmino	For the respondent

SOLICITORS OF RECORD:

Desroches Mongeon Avocats inc. Montréal, Quebec	FOR THE APPLICANT
Attorney General of Canada Montréal, Quebec	For the respondent